On March 25th, the BPP Human Rights Unit hosted Hannah Markham QC, Head of Family at the 36 Group and Alex Temple, Public Lawyer & Policy Officer at Just for Kids Law to discuss the rights of children and young people including incorporating the UN Convention on the Rights of the Child (UNCRC) into UK law and the impact of coronavirus. Amy Ann Kemp and Jason Chau report.
Jason Chau reports on Hannah Markham QC’s presentation
On March 25th, more than 50 students attended the BPP Human Rights Unit event, ‘Children are our future: do their human rights matter?’. The event hosted a panel of experts including Alex Temple from Just for Kids Law and Hannah Markham QC from Head of Family at the 36 Group, both of whom have extensive experience in appellate work on children’s law.
One of the HRU Student Directors opened the discussion, outlining the Convention of the Rights of the Child (UNCRC), the most ratified international treaty in the world, and its history within the United Kingdom, pointing out that the country is slow in giving direct effect to international treaties domestically. While looking at the different legislative instruments on protection of children’s rights in England and Wales, the focus was on Scotland, which incorporated the UNCRC provisions into Scottish law last year. The new law requires public authorities to comply with the UNCRC, allows legal enforcement of the rights protected and grants children and their representatives power to initiate judicial review against existing laws to comply with the Convention. It was considered whether this legislation could start a cultural change that would see children’s rights institutionalised, bringing a broader range of international human rights home.
Addressing this question, Hannah Markham QC, whose practice encompasses all areas of children’s work including international court of protection and family related judicial review, emphasised that the UK courts cannot provide sufficient protection of children’s rights until the UNCRC is incorporated nationally. She spoke about the relegation of the issue to primarily academic debates, noting the impact of the lack of judicial recognition of the UNCRC rights that could create case law bolstering its implementation in the UK. She pointed to two Supreme Court cases including ZH (Tanzania) [2011] UKSC 4 and General Comments of the Committee on the Rights of the Child to highlight the extent of UK’s implementation of the UNCRC provisions and criticised the treaty’s non-ratification as a ‘get out of jail free’ card for the government to defend its insufficient protection of children’s rights.
Hannah went on to outline that the courts have been increasingly open to the idea of referencing the UNCRC in its deliberation on family law cases, citing the President of the Family Law Division of the High Court’s judgment that children’s rights as defined in the UNCRC and the Human Rights 1998 is a primary consideration, albeit not a paramount one, when applying ECHR article 8 rights in the UK. She referred to this trend as an example of an incremental approach in establishing precedents that affirm children’s rights. Hannah argued that greater recognition of children’s rights relies on the willingness of the senior courts to stretch the interpretation of existing human rights laws in the UK to cover the language and the spirit of the UNCRC. The current reluctance for the judges to move faster in this direction is more often a reflection of political principles and public policy interests rather than legal reasoning.
The key takeaway of the discussion remains that, for more robust protection of children’s rights nationally, the rest of the country ought to mirror Scotland in actively incorporating the UNCRC into domestic law through primary legislation, thereby offering clear legal guidance as to how it should be enforced and how competing interests are to be balanced. It will be interesting to see whether Scotland’s legislation can bring about material change to the national debate on UNCRC’s applicability. Overall, the event offered a cogent reminder that, while the pandemic is still the dominant issue of the day, there are many other urgent social issues awaiting to be resolved. Positive actions must be taken to considerably improve the rights of the marginalised, especially children. The work of the panel is truly inspirational, and more lawyers, activists and social workers should join their ranks to promote the fundamental rights that underpin the well-being and moral standing of our society.
Amy Ann Kemp reports on Alex Temple’s presentation
In March 2021, the Scottish Parliament unanimously passed the United Nations Child Recognition Convention Incorporation Scotland Bill. This commitment by Scottish ministers to take the maximum approach to fully and directly implement children’s rights within its law is a major milestone that has taken decades of lobbying to achieve. Bruce Adamson, Children and Young People’s Commissioner Scotland, has been at the forefront of these efforts and states that this legislation is “the biggest step to ensure children’s rights are respected, protected and fulfilled”. As a result, in six months the UN Convention on the Rights of the Child (UNCRC) will be fully incorporated allowing children and young people to rely on this under Scottish law, making their rights much more real.
Pervading the evening’s discussion was the interplay between policy decisions and the reality of children’s rights in practice, particularly during the pandemic. Although the UK government signed up to the UNCRC convention in 1990, pledging to uphold the rights of the child, it has yet to be incorporated into domestic legislation. The experience of children within the UK highlights the need for fundamental reform of how children’s services and protections are implemented.
One of the Student Directors for BPP Human Rights Unit started by highlighting that whilst children and young people have faced significant disruption as a result of the pandemic, it has also entrenched other issues pervading for young people such as poverty, with the UK on track to have the highest levels of poverty since records began in the 1960s. Whilst the UK is a signatory to the UNCRC, thereby demonstrating its commitment to children and young people, it is clear that certain children have been disproportionately affected by the pandemic. Education, safety from abuse and mental health for young people have all been adversely affected.
The UNCRC is important as it is the first legally binding international instrument to fully incorporate civil, cultural, economic, political and social rights as well as aspects of humanitarian law. Starting with the premise that “Children should grow up in a family environment of happiness, love and understanding”, the UNCRC is the most ratified human rights treaty in the world, with every United Nations member bar one having adopted it. The presentation outlined the general principles the UNCRC promotes: non-discrimination, the best interests of the child, a right to life, survival and development, and the right for children’s views to be given due weight. Another significant right acknowledge within the UNCRC is the right to education, which became particularly significant in light of conversations around the impact COVID-19 in the disruption of education. The scope of the UNCRC is wide and covers many aspects of children’s rights, recognising the status of children as human beings with a distinct set of rights, not just passive objects of care and charity.
The hope within Scotland is that there will be a significant cultural shift in the way children’s rights are viewed and upheld, with legislative steps to hold authorities accountable, and the repeated recommendation to the UK is to incorporate the Convention in UK domestic law. Interestingly, the convention requires States to take comprehensive legislative measures. Historically, the UK has a good record of ratifying international treaties, but is often slow to give them direct affect in domestic law. The UK does have domestic legislation which seeks to promote the rights of children, notably the Children’s Act 1989. There have been efforts to enshrine the Convention into UK law, such as measures passed in January 2011 in Wales which placed a duty on ministers in the jurisdiction to have due regard to the convention when developing or reviewing legislation and policy. Despite this, critics have voiced that whilst it is a step in the right direction, the due regard of law means rights may still be forgotten. Ultimately, anything that falls short of incorporation of these Convention rights does not go far enough.
Alex Temple is a Public Lawyer & Policy Officer at Just for Kids Law, who has worked on landmark cases in the appellate courts and was influential in setting up JfKL’s School Exclusions Hub which tries to keep young people in education. Alex emphasised the importance of taking a rights-based approach to education in support of young people and put forward the benefits of full UNCRC incorporation and how even the rights that we do have at present whilst limited can support young people who are missing out on education. While many treaties contain a recognition of right to education, none exists within UK law. There is a duty on local authorities to make sure there is provision for young people within local areas, as well as the duty on parents for children to receive a suitable education. Even with these provisions, the lack of a comprehensive framework engenders a very complicated system in which the voices of children are not heard and which fails to place welfare of the child at the forefront.
Alex gave a detailed insight into one of Just for Kids Law’s main areas of work, school exclusion. This encompasses not only those who have been directly excluded from a school for breaching school policy, but also for young people missing education for a myriad of other reasons. Occurrences of children falling through the cracks and struggling to get back into education is something, Alex notes, which is all too commonplace, and outlined three major concerns in light of this reality.
The first is that the exclusion system is not fair, both under a public law and common-sense. The responsibility of governors to oversee exclusion procedures where they do not have the best interest of the children at the core of decision-making due to their allegiance to the school, combined with lay panels conducting what is effectively a judicial review of a student’s education status, is an unsatisfactory state of affairs. Alex explained the complicated and lengthy process of Independent Review Panels, which do not have jurisdiction to reinstate pupils, even if they find in the child’s favour. Alex pointed us to a case he had recently worked on, where a student won their appeal, going through several IRP’s and a subsequent judicial review in the high court. The length of this process meant that this student has been out of education for fourteen months, only to find out they should not have been excluded in the first place.
Second, the institution of school exclusion is discriminatory. Young people from black Caribbean backgrounds are six times more likely to be excluded than their peers. This is not new information, and factors such as gender, race, economic status or whether a child has special educational needs all impact on the likelihood of school exclusion. When considering all those characteristics together, likelihood of exclusion is dangerously high. Alex sees this reflected in his practice.
Finally, there is lack of regard to safety, integrity and the right to life. There is a tangible, observable link between school exclusion and child criminal exploitation. The core issue is having an education system that does not acknowledge the right to an education, extending into the failure to take into account young people’s wishes and feelings. Through the above actions, schools can play an unconscious but, nonetheless, active part in exposing young people to criminal exploitation.
Alex focused in on these factors in light of the coronavirus pandemic, and how emergency legislation has impacted young people in a significant way. Young people with special educational needs have, for the first time, lost entitlement to support. As part of a legislative measure to tackle the spread of coronavirus, the government removed the absolute duty on local authorities to provide education, health and care plans. These plans are put in place to support the very specific needs of the individual, and changes meant that local authorities are only required to take reasonable endeavours to support these needs. As a consequence, young people have faced permanent damage.
Questions posed to Alex regarding whether young people are aware of their rights and what hope there is for the future of children’s rights in the UK confirmed the reality young people face and the need to adopt a rights-based approach in education and all aspects of a young person’s life. Alex pointed out that the aim was not to get young people to be their own lawyer, but to educate and empower young people to recognise when they have a legal issue and be able to access legal help, rather than waiting until the point of crisis to seek help.
Fundamental to future change is the reality that the picture of how seriously children’s rights are taken in the UK is shifting, but progress is painfully slow. It comes down to the fact that nothing is a legal requirement, and any change should pull focus away from the government’s paternalistic approach, to a rights-based one. There is hope, but, currently, we are not heading in the right direction.
To find out about future HRU events, look out for posts on the BPP Careers Hub.
Disclaimer: The BPP Human Rights blog, and all pieces posted on the blog, are written and edited exclusively by the student body. No publication or opinion contained within is representative of the values or beliefs held by BPP University or the Apollo Education Group. The views expressed are solely that of the author and are in no way supported or endorsed by BPP University, The Apollo Education Group or any members of staff.
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